The Senate Rules provide a 60-vote threshold for Supreme Court nominees to be confirmed, and it appears less and less likely that Neil Gorsuch will be able to meet that threshold. If he can’t, Senate Republicans will face a choice—and yes, it is their choice—as to whether they should unilaterally change the Senate Rules through the nuclear option, so that Supreme Court nominees can be confirmed with just a majority vote.
Most of the arguments against the nuclear option have focused on institutional interests for both the Senate and the Supreme Court. Retaining the 60-vote threshold would preserve the unique nature of the Senate that encourages broader consensus and less extremism. There also is a concern—on both sides—that reducing the confirmation threshold to a simple majority could lead to more ideological Supreme Court Justices and a more polarized Court.
Those are compelling reasons in themselves, but there also is a far more practical question that Republicans must consider: How will Senate Democrats respond to this historic power grab? If Democrats follow the Republican response in 2013, it will freeze the Senate for thousands of hours, preventing Republicans from advancing their agenda.
In November 2013, Senate Democrats invoked the nuclear option to lower the confirmation threshold for lower court and executive branch nominees. In response, over the next 13 months, Republicans forced Democrats to file cloture on 154 nominees, and they forced 131 cloture votes.
This was extraordinary. To put these numbers in perspective, from 1949, when cloture could first be invoked on nominations, until November 2013, cloture had been filed on only 148 nominees, with cloture votes on only 91 nominees. (And this includes cloture filed on 80 Obama nominees, with 40 votes, prior to November 2013).
One reason Republicans forced so many cloture votes—even though the overwhelming majority of the nominees were not controversial—is that each time cloture is invoked, the Senate Rules require that the Senate expend a set amount of post-cloture time, during which no other business can be conducted, unless every Senator agrees to yield back that time. So the Republican response used hundreds and hundreds of hours, and Democrats lost this precious Senate floor time in which they could not advance their agenda.
As frustrating as it was to take all of this time to confirm nominations, the reality is that it could have been much worse—and would be worse today.
The Standing Rules of the Senate require 30 hours of post-cloture debate on a matter, but in 2013, the Senate passed a resolution that temporarily lowered the amount of post-cloture time for sub-Cabinet executive branch nominations to 8 hours, equally divided, and for district court nominations to 2 hours, equally divided. These provisions expired at the end of 2014, so all nominations have returned to 30 hours of post-cloture debate.
In other words, if Senate Democrats simply responded to the nuclear option in the same way that Republicans did in 2013—forcing cloture votes on 131 nominations—that would use nearly 4,000 hours of floor time. And given the higher stakes of applying the nuclear option to the Supreme Court, you could imagine their response may be even greater.
Senate Democrats don’t seem to be planning their response yet—Democratic Leader Schumer instead is focused on avoiding the nuclear option through a reasonable path forward: encouraging President Trump to seek the advice of Senate Democrats and Republicans in finding a mainstream nominee. As he has said repeatedly, don’t change the rules, change the nominee.
But Republicans know—because they were the ones who established the precedent—that there will be a response if they choose to change the rules in the middle of the game. So before they invoke the nuclear option, they should ask themselves: if they want to advance their agenda, do they really have an extra 4,000 hours to spare?
If not, the Schumer diplomacy option is the best path forward for them—and we already know it would be best for the Senate, the Supreme Court, and the nation.